Each year, the United States designates a set number of employment-based visas, allowing foreign workers to establish themselves in the American job market and become permanent residents. American businesses, in turn, benefit from the expertise and experience of international workers, further cementing collaboration between the United States and other countries.
The United States currently approves approximately 140,000 employment-based visas (green cards) each year, 40,000 of which are earmarked for foreign workers who qualify for the second preference employment-based visa, known as an EB-2.
The EB-2 visa applies to international workers who meet certain education, background, skills, and knowledge, and categorized into one of three subcategories – advanced degree (EB-2A), exceptional ability (EB-2B), and national interest waiver (EB-2C). Eligibility for an EB-2 visa includes:
EB-2A – Advanced Degree
The EB-2A visa is designed for workers who possess advanced educational degrees, such as a master’s degree, doctoral degree, or foreign equivalent. Foreign workers with a bachelor’s degree plus five years’ progressive work experience in a specific area may also qualify for an EB-2A visa. In order to qualify, workers must show proof of degrees, or equivalent, and documentation from employers proving at least five years’ experience in the worker’s specialty field. The U.S. Citizenship and Immigration Services (USCIS) must make the determination that a worker’s experience meets the criteria for “progressive” in order to consider it equivalent to an advanced degree.
EB-2B – Exceptional Ability
Workers in the EB-2B category must possess a specialized degree and significant skill and experience in the sciences, business, or art fields. Certain athletic professionals may also be considered as possessing exceptional abilities in the arts, qualifying them for an EB-2 visa. All applicants must provide evidence of exceptional ability through at least three of the following:
- Official academic records of degrees, diploma, or certificate from a college, university, or education institution for a specified field of study
- Certificates or licenses required to practice in the applicant’s field of study
- Evidence of membership in a professional association in the field
- Documentation of salary or pay equivalent for an individual with such exceptional ability
- Letters from former and current employers confirming the applicant has at least 10 years’ full-time work experience in the field
- Recognition and acknowledgement of achievements and contributions to the field by peers, government entities, and professional or business organizations
Applicants who are unable to provide any documentation may still be considered by the USCIS if they can provide other comparable evidence provided it is relevant.
Applicants for EB-2 visas must possess a valid job offer with an American employer and be approved by the U.S. Department of Labor (DOL) Foreign Labor Certification Process, which is carried out by the American-based employer.
To obtain approval of the labor certification, the employer must be able to confirm that the position the foreign worker is being hired for has a demonstrated shortage and no Unite States workers meet the minimum requirements for the position. In order to prove this, the DOL requires employers to advertise the available position in various locales and newspapers on at least two consecutive weeks.
One critical aspect of the labor certification process for an EB-2 visa is how the employer states the minimum qualifications for the position being offered. The job description must include and require candidates to have at least an advance degree, such as a master’s or doctoral degree, or a bachelor’s degree followed by five years’ progressive work experience. If the employer states in the application for the labor certification that applicants with less than either of these requirements, then the position does not qualify for an EB-2 visa.
Another critical element of the labor certification process is determining the prevailing wage. In order to qualify for an EB-2 visa, the DOL requires that the position offered the foreign worker must be 100 percent or more than the current prevailing wage for other workers in an equivalent position.
EB-2C – National Interest Waiver
Though EB-2 visas require candidates to possess a permanent job offer and labor certification approval, there is an exception. Applicants who can prove their abilities and permanent residency is in the best national interest may be eligible for an EB-2C visa through a National Interest Waiver. The Immigration Act of 1990 defines national interest as “significantly above that necessary to prove prospective national benefit.” Applicants can petition themselves for the EB-2C visa and typically qualify for the exceptional ability subcategory.
In order to prove themselves a benefit to the United States, applicants are required to demonstrate how their work will positively impact a variety of aspects of American life. For example, a foreign physician working full-time during a pandemic in a location with a shortage of physicians with their qualifications.
At present, there is no set criteria for proving an applicant worthy of a NIW, past successful candidates demonstrated their expertise and experience would:
- Improve the economy in the United States
- Improve the wages and working conditions of other employees in the United States
- Improve the natural environment and how the United States utilizes national resources
- Provide young, old, or poor residents with more affordable housing
- The applicant’s presence is requested by an American government agency based on the applicant’s specific expertise and experience
Additionally, candidates for the National Interest Waiver must also demonstrate that it would be impractical to require a job offer or labor certification, given the applicant’s qualifications and the United States’ immediate need of their abilities.
Spouses and unmarried children under age 21 may also be permitted to migrate to the United States if the applicant is approved for an employment-based visa.
For all categories of the EB-2 visa, the application process and verification of documents can be a complex and challenging task. Applicants whose documents are deemed unverified are denied and must start the process over again, which is why it is best to hire a knowledgeable immigration attorney to assist you.
Philadelphia Immigration Lawyers at Surin & Griffin, P.C. Help Clients Obtain Employment-Based Visas to Work in the United States
Without extensive knowledge of immigration law, the employment-based visa process is difficult and time-consuming for both the employer and foreign national worker. Many details can be overlooked without the guidance of experienced immigration counsel, such as the Philadelphia immigration lawyers at Surin & Griffin, P.C. Call us at 215-925-4435 or contact us online to schedule an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and nationwide.